case law b Flashcards
who are the respondents to hosking v runting
the photographer who took the photos and the magazine who wants to publish them
what is a tort
a civil wrong independent of contract
what are interveners
parties who support one or the other side with a keen interest
what did president gault look at first
overseas jursidictions
who was the judge in hosking v runting
president gault
what had the uk done with privacy?
used the tort of breach of confidence as a sort of fit
what does the tort of breach of confidence require
information of confidential nature, which has been communicated in confidence, and has been disclosed to the detriment of the claimant
what cases suggested a tort of privacy in nz pre hosking v runting
tucker v new media ownership, bradley v wingnut films, p v d
why was the hosking case so important for the tort
court of appeal was the highest in nz that could make big decisions to bind on everyone (PC wouldn’t make policy decisions like this bc of politics)
what does the ICCPR stand for
international covenant on civil and political rights
what nz legislation ratifies the ICCPR
NZBORA
what part of the ICCPR did NZ not sign to
privacy protection
what did President gault conclude about NZ not including privacy protection in its ratification of the iccpr in the nzbora
it was too hard as we didn’t know how to protect it without infringing on peoples freedom of expression but we still want to protect it
whats in the privacy act 1993
deals with giving public information for example to websites and what they can do with that information
what is in the broadcasting act
establishes the broadcasting standards authority who has published guidelines around how to deal with privacy in broadcasting
what is a cogent argument
an argument has two main things: accepted premises and valid reasoning (facts and what you do with those facts to come to the conclusion of your argument)
what were the two principle issues to resolve in hosking v runting
interests of privacy and freedom of expression conflicting and who should create such as big new area of law - the courts or parliament
why is freedom of expression so important
- state cant tell you what to do or say
- can criticise the state
- can create your own life how you want it, have a personality and opinions
big policy decisions are often made by
parliament
how does president gault justify making this big decision in the courts
it shouldnt be made in the courts but we are just expanding on what the courts have done so its okay. goes against himself because the courts shouldnt be doing it in the first place. he knows this is weak but parliament weren’t doing anything so he took it into his own hands
what elements must be met for the tort of privacy
facts with a reasonable expectation of privacy and publicity that is highly offensive - defence is legitimate public concern
in order for a fact to have a reasonable expectation of privacy it must?
- be a private fact (think about whether a reasonable person would want control over whether people know about it)
- have a reasonable expectation (if you share it this might not be there)
in order for publicity to be highly offensive
- it need only be publicised (made public) not published (to lots of people)
- must be highly offensive to a reasonable person in the same situation
- the person doesn’t have to be physically injured, distress is enough
who has to prove the tort of privacy
the person bringing the claim
who has to prove the defence of legitimate public concern against the tort of privacy
the person with the legitimate public concern - the person defending
what does the tort of invasion of privacy infringe on
your freedom of expression and the ability of people to receive information they are interested in
facts are on a spectrum from?
trivial to intimate
freedom of speech interests are on a spectrum from?
trivial to important
if something is a public concern it can override?
the privacy interest
what is the proportionality test
you have to weigh up the proportion of public interest to privacy interest
what happened in hosking v runting
a celebrity couple, in the public limelight for decades, the Hoskings are open to discuss the pregnancy with the media, after the birth of their twims the coupld separates, photos taken for magazine, picture of children being pushed in pram by mother in the street
photos of people in general are ?
private
is there an expectation of privacy walking down the street
not really
celebrities expectation of privacy is?
weakened, “public figures sacrifice, to some degree, their privacy”
depending on what is being shown in the photograph sometimes people in the public might?
still have an expectation of privacy even though the photos were taken in a public place
what had the hoskings already done that was controversial
published photos of the twins in magazine as babies
the judge in hosking said?
there is no real expectation of privacy because they are being pushed down the street and there is nothing particularly interesting in the photo
what did the judge in hosking look at that related to be sure?
how the highly offensive publicity relates to children. nz is a signatory to the un convention on the rights of the child which guarantees childrens rights including privacy but gault said the tort adequately protected children because the standarf for highly offensive can just be slightly lower for children
what are the facts of tvnz v rogers
Mr Rogers was arrested for the murder of Ms Sheffield and taken with police to the scene and asked to reconstruct it. The court decided this video take wasn’t allowed to be shown as evidence in court because the tape was created without Mr Rogers being told his rights to a lawyer and to not incriminate himself. Mr Rogers was found not guilty.
The police had leaked the tape to TVNZ before the trial, who wanted to show it as part of a documentary just after the trial. Now Mr Rogers doesn’t want TVNZ to show this tape on national television because showing this tape would be an invasion of privacy.
what is the issue in rogers
Does Rogers have a claim under the tort of invasion of privacy? (EXAM TIP - This will always be the issue for question about the tort of invasion of privacy :))
what is the relevant law for privacy cases
Hosking v Runting:
- Private facts and an expectation that the facts remain private - Publicity highly offensive - No legitimate public concern
what was the case for legitimate public concern in tvnz v rogers
Open justice (as in Vickery v Nova Scotia Supreme Court, R v Mahanga) means the legal system needs to be accessible to all, transparent and accountable so that we can all trust the system. The Court of Appeal said this open justice argument was so important it outweighed Mr Rogers right to privacy and it was decided that it was more important for the public to see the video. The video was allowed to air.
can the footage in tvnz v rogers be considered private facts
This is a video tape which is basically a confession to murder. This must in itself be at least potentially a private fact because if you told your spouse or priest or psychiatrist you expect they wouldn’t go tell anyone else.
is there a reasonable expectation that facts will remain private in tvnz v rogers
If he knew it was going to be shown elsewhere (i.e. telling the police about the murder he would’ve know it would be intended to be shown in court) then he couldn’t expect it to be private. However, the plaintiff must have the reasonable expectation of privacy at the time of the publicity not the time it was made. At the point of publicity he probably does have an expectation of privacy that it doesn’t get relitigated in the public forum. It was decided there was a private fact with a reasonable expectation that it remains private at the time of publicity. Remember, as in Tucker v New Media, the expectation of privacy can change overtime.
was the publication offensive in tvnz v rogers
If you are acquitted of a crime and then somebody publishes the video which shows you admitting to the crime then obviously this would be offensive to you because you have been found innocent. But remember, it must be highly offensive to a reasonable person in the shoes of Mr Rogers. As part of the court proceedings this showing may not be offensive because it is just what has to happen in a court room but being aired on public television to the general public might well be offensive. Just because something isn’t offensive in one situation doesn’t mean it can’t be offensive in another situation (R v Mahanga). Mr Rogers never got the chance to explain how it was a dream in court and so wouldn’t have a chance to explain himself to the public.
The court concluded that Rogers has a reasonable expectation that this confession tape remains private and that it would be highly offensive if it were shown, however it is still understandable that the public might like to see this tape so the defence of public concern needs to be considered.
what were the facts of andrews v tvnz
The Andrews were driving home from a social function when they lost control of the car and crashed. Both of them were over the legal alcohol limit. Both suffered minor to moderate injuries.
The fire fighting team arriving at the scene was accompanied by a camerawoman. The camerawoman was shooting footage for a documentary on the daily life of fire fighters. Due to the accident trauma, the Andrews were unaware of being filmed.
They only found out when they saw the documentary on TV. Some shots included Mr Andrews with an oxygen mask on his face. Others showed Mrs Andrews expressing her concern and love for her husband, as well as her pleas for him to “stay with her”. The Andrews were only referred to by their first names throughout the documentary.
can the footage in andrews v tvnz be considered to be private facts and is there a reasonable expectation that the facts will remain private
On one hand it is a public road so anyone could have seen the Andrews, but on the other hand they weren’t expecting to be in a crash and weren’t expecting this to be broadcast to the nation. Because of the medical emergency nature of the footage, they probably would still have an expectation of privacy, at least that it wouldn’t be on national television. This is an example of expectations in different contexts. In the end, the court decided they did have a reasonable expectation.
was the publication in andrews v tvnz offensive?
We have to apply the high threshold of truly humiliating or distressful. Sharing medical information or being shown in emotional distress could be a distressing thing if shown to others without your consent. The court agreed, and were a little persuaded by the fact, that the Andrews agreed the footage didn’t paint them in a bad light. The court should not have taken this into account and should have applied the reasonable person test in case of future cases where the parties weren’t taking it so well. The court said not having consent has no effect on the tort and so dismissed the case at this point as it was not highly offensive.
was there a legitimate public concern in the footage in andrews v tvnz
This footage shows what firefighters do, their pressures and is educational. It also educates about the bad effects of driving carelessly and getting into an accident. Seeing these people in their distressed state adds to the narrative and makes the situation more understandable. Even if the footage had been offensive, it still could’ve been shown because of public concern. If the injuries had been worse this might have changed because it could have been considered highly offensive footage.
